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Wednesday, February 24, 2010

It has been a while since I have blogged on this topic, so I thought it would be a good time to update ATK'ers on a recent case from the 7th Circuit. The case, U.S. v. Skoien, received very little press, but was important because it used Heller to overturn a fairly big federal gun law.

Mr. Skoien was arrested for violating 18 U.S.C. § 922(g)(9), which prohibits people convicted of misdemeanor domestic violence from possessing a firearm. He had been convicted of misdemeanor domestic battery a year prior to the police finding a shotgun in his truck that he had used to kill a deer during hunting season. He argued that 18 U.S.C. § 922(g)(9) violated his second amendment right to have a gun for self-defense. In his argument, he crought up Heller. He moved to dismiss the indictment in the US District Court and this was denied. The Court of Appeals vacated the denial and sent the case back to District Court.

Here is the text of the case. Basically, it said that Heller upholds a right to own firearms for self-defense and that the government failed to show that the law was reasonable under an intermediate standard of scrutiny:

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Later in the decision:

As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.

I should note that this case is from last fall. Since then, it has been decided that it will be heard en banc, or by the entire court, instead of just a three judge panel. If I had to guess, I would say that the entire court will follow what the panel said. In addition, the fourth circuit has decided a similar case on the same grounds, U.S. v. Chester (4th Cir. Feb. 23, 2010).

I believe both these cases to be sound law and a natural extension of the Heller decision. Let me say that I have no sympathy for people that engage in domestic violence. I think they should be punished appropriately and am not suggesting that society give them a 'pass'. I don't believe 18 U.S.C. § 922(g)(9) is a fair law and is very similar to zero tolerence laws. First of all, it is a lifetime ban. If you are convicted of misdemeanor domestic violence (under this law) you are forbidden from ever possessing a firearm for any reason. It doesn't matter how much time has elapsed or what you have done to turn your life around. You are out of luck. While it is clear that the state has an interest in protecting citizens from violence, the government was unable to show that people convicted of domestic violence were automatically going to kill someone at some point in the future.

I believe that a better approach to this is to treat it on a case by case basis. Not all cases of domestic violence are the same and they shouldn't be treated the same. The Court should have the discretion to ban certain people from having firearms if they can show some kind of risk to society based on things like past behavior, threats, and the like. I also don't think this should be a lifetime ban. An individual should be able to petition the court to lift the ban if they can show they are no longer a danger to other people.

8
comments:

I would normally agree with you about this issue; felons no longer being able to vote or obtain firearms is silly to me.

This phrase makes me nervous, but I think I see what you're actually saying: Not all cases of domestic violence are the same and they shouldn't be treated the same.

DV is DV. Some spouse got their ass kicked, repeatedly, by the other. DV is a level of victimhood akin to minors; a level of trust and the like is violated by violence, be it physical, sexual or both.

I realize your statement is broad. The facts behind each case establish how bad it was, and some is more bad than others. That's why we have the sentencing system we have...to determine which bad acts are worse than which other bad acts, and why, and apply a sentence commensurate with the level of...bad.

That said, do many DV perpetrators have a propensity for violence? The stats show that they do. The stats show they not only come from a long line of violence, but that they exhibit violent tendencies and behavior throughout their life.

Here's what bothers me: we can never predict who will use a gun for violent means and bad reasons. A dude with no criminal record buys a gun. In most cases, end of story. In a few cases, s/he maims or murders.

But with DV, you have someone who clearly exhibits violent behavior...who clearly shows a pattern of violence. Why should someone we KNOW is violent...and has been punished for it...get a gun?

The answer is that, according to this case, it's their right for self-defense.

But they have a gun. And there is a statistically higher propensity for them to use it for violent means (even if not to shoot, to threaten...and that is violence) than other felons.

You see my struggle with this issue. I hear you. I get where you and the courts are coming from; their missives are quite clear. I just don't agree, sorta. Maybe. I mean...we don't know who of every 100 people is going to be a nutbag. But in DV cases...you have a proven nutbag.

The law nerd in me finds the intermediate scrutiny aspect interesting. To my knowledge, this would be the only constitutional right considered to be a priori/on their face analyzed as under intermediate scrutiny. Others, most notably aspects of the 5th/14th amendment, are only scrutinized under intermediate scrutiny in certain cases (such as discrimination against women and gays).

Steve, you may disagree, but I think intermediate scrutiny is a fair standard if the courts are to incorporate the right to keep & bear. Given that the amendment is the only one with limiting 'legislative intent' language ("the well-regulated militia being necessary..."), I don't think strict scrutiny would make sense.

I disagree. A 15 year old boy that gets into a physical altercation with his father can be charged with domestic violence. A couple that gets into a mutual affray can end up with one of them being charged with domestic violence. This can be a single incident or it can be a pattern of abuse.

I am not suggesting that these offenses aren't worthy of punishment, but to treat them the same across the board is not justified, nor is it likely to be helpful.

Case 1:16 year old boy gets into a physical altercation with father. He has an AD/HD diagnosis and a history of impulse control problems (though none of them violent). Parents call police and convince the police and prosecutor to charge him with misdemeanor domestic battery. Teen is mad and makes all sorts of incriminating statements. Court appointed attorney is not much help and convinces him to plead guilty. He is sentenced to probation, but under 18 U.S.C. § 922(g)(9), he may never possess a gun. BTW, he is never told a guilty plea will result in this.

Case 2: Shitbag has a history of DV against partners and their children. He has made various threats and has not demonstrated a willingness to change.

Both of these are real examples of people I have worked with in the past. Do you really believe they should receive the same punishment? I haven't seen case 1 in some time, but he had made some significant progress in treatment and graduated high school and went to college. AFAIK, his record was completely clean after that incident. I have no problem with Case 2 being banned from owning a gun, but no matter how exemplary life Case 1 leads, under 18 U.S.C. § 922(g)(9), he will never be able to own a gun or petition the court for a reinstatement of his rights.

But with DV, you have someone who clearly exhibits violent behavior...who clearly shows a pattern of violence. Why should someone we KNOW is violent...and has been punished for it...get a gun?

This is the only misdemeanor that receives this treatment. I can still own a gun with a dozen misdemeanor battery convictions. I was also unable to find any data that shows a significant number of DV people went on to murder, nor have I found any evidence that this law has made victims any safer or lowered the crime rate. Again, I am not arguing that no one ever be banned, but I would like to see it be a part of due process.

My guess is that, like with the sex offender registry, you have a group of people that most people don't know much about or like and is a feel good law.

Steve, you may disagree, but I think intermediate scrutiny is a fair standard if the courts are to incorporate the right to keep & bear. Given that the amendment is the only one with limiting 'legislative intent' language ("the well-regulated militia being necessary..."), I don't think strict scrutiny would make sense.

I would disagree, as I don't see the "well regulated" clause to be a limit on an individual right to keep and bear arms. That being said, this is certainly a step up from the almost unlimited discretion given to legislatures to craft any kind of law. Heller makes no mention of any kind of scrutiny, so I would suspect that a lower court making a test would probably mean the Supremes will have to decide.

It may piss people off, but I don't get worked up about gun rights issues in either direction. I would propbably lean to some restrictions on "assult weapons" etc. Other than that, I just don't find gun restrictions realistic, (consititutional issues aside) or fear the loss of rights either.

I can still own a gun with a dozen misdemeanor battery convictions. I was also unable to find any data that shows a significant number of DV people went on to murder, nor have I found any evidence that this law has made victims any safer or lowered the crime rate.

And that says it. And that's why, I guess I lean towards give 'em the guns, like the decision says.